Health Reform Opponents Planning Their Strategy

WASHINGTON -- With the House and Senate now in basic agreement on healthcare reform and President Barack Obama about to sign the underlying bill into law, opponents are gearing up to challenge the legislation on a variety of fronts.

This effort was beginning even before Sunday's House vote sent the Senate version of the bill to the President's desk.

Obama was expected to sign the measure on Tuesday, and shortly afterward, the Senate was expected to take up final revisions made by the House to smooth out differences between the chambers' original versions.

While GOP lawmakers in Washington promised a repeal campaign, two states -- Virginia and Idaho -- have already enacted laws exempting their residents from health insurance mandates. There are movements in 34 others -- particularly those with Republican legislatures or governors -- to enact similar legislation.

In Virginia, the law says that "No resident of this Commonwealth, regardless of whether he has or is eligible for health insurance coverage under any policy or program provided by or through his employer, or a plan sponsored by the Commonwealth or the federal government, shall be required to obtain or maintain a policy of individual insurance coverage."

The law also states that "No provision of this title shall render a resident of this Commonwealth liable for any penalty, assessment, fee, or fine as a result of his failure to procure or obtain health insurance coverage."

The Idaho law, called the Idaho Health Freedom Act, states that "every person within the state of Idaho is and shall be free to choose or decline to choose any mode of securing healthcare services without penalty or threat of penalty."

These laws rest on the principle that a federal requirement that citizens buy health insurance is trampling on states' rights, said Miles J. Zaremski, a healthcare attorney from Northbook, Ill. and past president of the American College of Legal Medicine.

He pointed out, however, that the mandate requiring people to buy health insurance won't kick in for another four years, so it may be too soon to ask a court to invalidate it now.

"You might say it's premature to raise it at this time," he said. "You're asking the courts to look at a legal issue that hasn't ripened yet, even though it's law. It hasn't affected the states yet."

Some observers compare the health insurance mandate with the mandate to buy auto insurance, which is typically a state law, not a federal one. But there is an important difference between the two, according to Zaremski.

"Auto insurance is typically not just for yourself, but if you smash into somebody, you have to protect them as well," he said. "In healthcare, that's not how it works."

However, he noted, if you apply the notion that people who have health insurance end up indirectly paying for the uninsured through higher premiums, then the auto analogy becomes stronger.

William G. Schiffbauer, a Washington attorney who represents health insurers, employers, and other payers, said one interesting issue about the mandate is that it represents the first time the federal government has mandated that people buy a particular commercial product.

"A lot of the concern is, if they can make you buy health insurance, what will stop them from saying you have to buy a Jenn-Air refrigerator or only American-made cars?" he said.

Another potential legal pitfall involves the limits that the law sets on how much insurers can charge -- that brings in the issue of taking of private property, said Schiffbauer.

"There have been cases that have gone to the Supreme Court about how utilities are regulated," he said. "If the control becomes too confiscatory and the regulated entity can't earn a reasonable rate of return, there are unconstitutional takings issues being raised."

Some states are not waiting to challenge the law. Florida's Republican attorney general, Bill McCollum, announced that he and nine other attorneys general are planning to sue the federal government as soon as President Obama signs the legislation.

The other states involved are South Carolina, Nebraska, Texas, Utah, Pennsylvania, Washington, Alabama, Michigan, and South Dakota.

"The healthcare reform legislation . . . clearly violates the U.S. Constitution and infringes on each state's sovereignty," McCollum said in a statement. "If the President signs this bill into law, we will file a lawsuit to protect the rights and the interests of American citizens."

The bill also faces legal opposition from business groups.

The U.S. Chamber of Commerce has already declared that it "will work through all available avenues -- regulatory, legislative, legal, and political -- to fix its flaws and minimize its potentially harmful impacts. Through the largest issue advocacy and voter education program in our history, we will encourage citizens to hold their elected officials accountable when they choose a new Congress this November."

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